A U.S. district court judge will decide within 30 days whether to dismiss Virginia’s lawsuit challenging the constitutionality of Obamacare. From the perspective of Virginia Attorney General Ken Cuccinelli, the stakes could not be higher. The fate of federalism, he believes, hangs in the balance.

“This case really goes to the foundations of this country,” Cuccinelli said last night in an exclusive interview. “It is truly a case about the outer limits of federal power under the Constitution. It’s really not a case about health care. It’s a case about liberty. … It is a sad state of affairs when all that stands between us and the end of federalism is one lawsuit.”

But that lawsuit is not over yet — and Cuccinelli said he is optimistic it won’t be over anytime soon.

Virginia’s lawsuit asserts President Obama’s health care law is unconstitutional because it mandates individuals to buy health insurance — a power that Cuccinelli argues is not enumerated in the Constitution. It also aims to protect a Virginia statute that says Virginians cannot be compelled to buy health insurance or to pay a penalty if they refuse insurance.

U.S. Health and Human Services Secretary Kathleen Sebelius asked the court to dismiss the lawsuit last month.

Yesterday morning, in the courtroom of Judge Henry Hudson of the U.S. Federal District Court for the Eastern District of Virginia, in front of an audience of interns and Virginia journalists, Cuccinelli argued against the federal government’s motion to dismiss.

“The United States had a hard time dealing with some of the issues that both we raised and the judge raised,” Cuccinelli said.

Among those issues was the question of whether the penalty imposed on anyone who ignores the individual mandate is a tax.

“You’ll recall that all of the Congressional supporters and the president insisted this was not a tax before it passed,” Cuccinelli said. “Well, their lawyers are now arguing that it is.”

In the written motion to dismiss, the federal government argued it has the power to mandate that citizens must be covered by health insurance or pay a civil penalty under the U.S. Constitution’s commerce clause.

“Their very, very — not surprisingly, but still shockingly — vast view of what the commerce clause allows is just stunning,” Cuccinelli said. “If [the individual mandate] represents something within the power of the commerce clause, it’s going to leave the federal government as barely a limited government at all because, by ordering Americans to buy products, you can accomplish an awful lot of policy goals.”

Cuccinelli thinks the clarity of his arguments — and the opacity of the federal government’s — came through at today’s hearing.

“On balance, I think that we were better off at the end of the day, and I’m cautiously optimistic — ever so cautiously — that we’ll be OK, by which I mean [Hudson] will deny the motion to dismiss and the case will go forward,” he said.

If Hudson does deny the motion to dismiss, a judge on October 18 will hear arguments on the motion for a summary judgment. Cuccinelli hopes the case will ultimately end up before the U.S. Supreme Court.

Twenty other attorneys general and the National Federation of Independent Business have also filed a separate suit against the government in opposition to Obamacare. Like Cuccinelli, the plaintiffs in that case believe their suit is about more than health care.

“Quite frankly, we view this as not just a health care issue anymore,” said Karen Harned of the NFIB. “I do not think it’s a stretch to say, if the government can require you to buy insurance simply because you’re alive, then, if they want a healthier society, they could require you to buy a gym membership. If they want a cleaner society, they could require you to buy a car every five years.”

Cuccinelli thinks this is the most important case he will ever argue.

“Every lawyer working on this case knows that it would be bordering on an astronomical miracle in terms of odds if we ever work on a case this important again in our entire careers,” he said.

Join The Discussion

It's good to see some real leaders emerging from this massive assault on our liberties. Go AG's!

I don't see how the government can argue that this mandate is a tax. If I am forced to buy health insurance, or else pay penalties or serve time behind bars, at least I get something for it at the end of the day…a transfer of financial risk if I have health issues. If I am forced to pay a tax, or else pay penalties or serve time behind bars, I don't get anything for it at the end of the day except a richer government and a poorer me bearing the same financial risk.

I recall reading that Social Security "contributions" wouldn't pass Constitutional muster unless they were called a tax which they ultimately were called. Hopefully, this precedent is not used to bolster the governments argument.

This is a fight for survival of America as it has been loved and died for. And now we know what candidate Obama really meant when he wrote about audacity. This fight will not end until the elitist takeover is ended – one way or another

[…] Virginia's motion to immediately strike down the law Oct. 18. Cuccinelli said at a news …Exclusive: Virginia's Cuccinelli Confident in Legal Challenge to ObamacareHeritage.org (blog)Arguments Set in Legal Challenge to Health Care Reform LegislationADVANCEVa. […]

[…] Exclusive: Virginia’s Cuccinelli Confident in Legal Challenge to …? From the perspective of Virginia Attorney General Ken Cuccinelli, … have also filed a separate suit against the government in opposition to Obamacare. … Heritage.org (blog) […]

The "fine" was never about makign sure everyone had insurance it was the only way the dems could find money to pay for it. Using the Commerce Clause is weak at best but I wonder which judges will stand for law and not this Obama BS. If upheld then the government can unltimately say that anything you buy falls under the commerce clause and therefore open to regulation. Very scary indeed. This is not what the founding fathers had in mind when you read the Federalist Papers. Maybe the dems should have read them first…….

I don't know about the legality of the health care reform act in its entirety, but I believe the part that requires all citizens to buy health insurance is un-Constitutional. If Virginia's challange makes it to the Supreme Court, it my be that only this part will be declared un-Constitutional, with the rest standing. If we get lucky, the Court could declare the whole law Un-Constitutional.

Of course this Virginia lawsuit is about more than just health care reform. It is about the ever growing power grabs by the federal government. Ironic, isn't it, this government that wants more and more power, doesn't exercise the power it does have to enforce our immigration laws, protect and seal our borders and deal with an oil spill? They have taken over car companies, banks, insurance companies and health care. they are trying to take over, or put out of business oil companies. And still, they clamor for more power and more taxes.

It puts tears in my eyes that we still have people like Cuccinelli fighting this hard for our rights. Maybe I’m paranoid, but as an immigrant from a Soviet Bloc, I fear that the rate at which our freedoms are slipping away is irriversible. So, to read accounts of this kind, restores at least a little hope in an old man.

James Wilson, Supreme Court Justice appointed by George Washington, "States are Subordinate to the People, and the Federal Gov't is Subordinate to the States" –

Let a State be considered as subordinate to the people: But let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the State has claimed precedence of the People; so, in the same inverted course of things, the Government has often claimed precedence of the State; and to this perversion in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the State. This second degree of perversion is confined to the old world, and begins to diminish even there: but the first degree is still too prevalent, even in the several States, of which our union is composed. By a State I mean, a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests: It has its rules: It has its rights: And it has its obligations. It may acquire property distinct from that of its members: It may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts; and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this feigned and artificial person, we should never forget, that, in truth and nature, those, who think and speak, and act, are men.

Chisholm v. Georgia (2 US 419) Supreme Court Justice James Wilson

Justice Iredell issued what is now generally termed the opinion of the Court; Justice Wilson’s more famous opinion was written separately but in concurrence with Iredell’s.—B. F.

James Wilson, Supreme Court Justice, appointed by George Washington: States are Subordinate to the People, and the Federal Gov't is Subordinate to the States:

"Let a State be considered as subordinate to the people: But let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the State has claimed precedence of the People; so, in the same inverted course of things, the Government has often claimed precedence of the State; and to this perversion in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the State. This second degree of perversion is confined to the old world, and begins to diminish even there: but the first degree is still too prevalent, even in the several States, of which our union is composed. By a State I mean, a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests: It has its rules: It has its rights: And it has its obligations. It may acquire property distinct from that of its members: It may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts; and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this feigned and artificial person, we should never forget, that, in truth and nature, those, who think and speak, and act, are men."

Chisholm v. Georgia (2 US 419) Supreme Court Justice James Wilson

Justice Iredell issued what is now generally termed the opinion of the Court; Justice Wilson’s more famous opinion was written separately but in concurrence with Iredell’s.—B. F.

God Bless the Founders true to the people, covering the grounds they foresaw would be infiltrated by the ability of evil in the minds and hearts of the government leadership elect. I also applaud Virginia’s Attorney General, Cuccinelli and the author.

[…] against the President’s health bill was Virginia Attorney General Ken Cuccinelli. As we highlighted last week, constitutionality is at the heart of Cuccinelli’s battle against Obamacare’s individual […]

For a group of readers claiming to know what the Constitution says, you reveal a shocking lack of knowledge about SC precedent on the Commerce Clause, namely: Raich and Wickard.

In light of those two cases, upholding the federal regulation of wheat & marijuana grown at home, this is a slam dunk case. I agree the commerce clause is inflated and distorted, but so are all of these comments that ignore, or don’t know about, the controlling SC precedent.

(ps: it is also easily distinguishable from Lopez and Morrison, which sought to regulate violence, broadly speaking)

[…] against the President’s health bill was Virginia Attorney General Ken Cuccinelli. As we highlighted last week, constitutionality is at the heart of Cuccinelli’s battle against Obamacare’s individual […]

I'm disgusted that President Obama's plan on health-care is even being considered. Where has this country's leadership gone to? I live in a area that has been plagued with unemployment, businesses closing up shop, and we the people who are still working exhaustively for our families, for a living, for our dreams, and our futures are still supporting a concept that is failing horribly and expects the working class taxpayers to pay more. My wife and I put ourselves through college working full time jobs, raising a family. When it comes time for my youngest son to go to public school in my area I'm told that my son would not be able to attend pre- kindergarten because we make too much for a four person family. Let me state that I do not believe that 65,000 a year is too much for a family of four. When I had asked an appropriations representative at Harrisburg about the financial regulations of my son's school district, his response was I would have to pay out of my own pocket. Funny enough this was the same response I received from the school district. For my son to attend pre- kindergarten I would have to pay 7,500 dollars for his tuition to attend pre- kindergarten in the public school system. I don't understand how a government could ask people to pay more when so many are not working, living on fixed unrealistic incomes, and in a rural area the options are not many. Now our government is informing us that to have health insurance, on top of our outrageous premiums, we are also going to have to pay tax on the employers cost of our insurance. Our taxes are high enough, and my statement is maybe the rich, should pay more, maybe our government officials that we elected should take more pay cuts, isn't that why they took office to serve our beloved country. Our government should remember that it is a government for the people and by the people. Health Insurance like blue cross blue shield charge too much in premiums and don't cover nearly enough for the cost, or preventative health care. Put more people back to work not tax the working more. I applaud the state of Virginia and Attorney General Ken Cuceinelli. I applaud the remaining Attorney Generals for their appeal to an unjust bill by our government. If maybe more states should show similar zeal in this matter the Federal government would take it more seriously God bless America and our freedom..

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